When someone has died and failed to make adequate financial provision for certain relatives or dependants, the court has discretion to vary the distribution of the deceased's estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.

Claims issued under the Inheritance Act must be made within a very strict time limit: 6 months from the date of issue of the Grant of Probate/Grant of Letters of Administration. In special circumstances however, section 4 of the Inheritance Act does provide the court with a discretion to grant a claimant permission to bring a claim out of time.

What factors will the court take into account?

There is no statutory guidance for the court to refer to when deciding whether to use its discretion. Usefully however, the Court of Appeal confirmed in the relatively recent case of Berger v Berger [2013] EWCA Civ 1305 that the principles laid down in the cases of Re Salmon [1981] Ch 167 and Re Dennis [1981] 2 All ER 140 remain good law.

When deciding whether to use its discretion, the court must consider whether the claimant has acted promptly and the circumstances in which he or she applied for an extension of time after the expiry of the six month time limit. The court will take into account the following factors:

  • The merits of the claim

The first, and arguably one of the most important factors, to consider is whether the claim for financial provision has a realistic prospect of success (if it had been made in time). If the answer is no, the application for permission to proceed out of time will most certainly fail.

  • Whether any negotiations had begun before the time limit expired

The court should consider whether or not negotiations were commenced within the applicable six months - if negotiations were ongoing it is more likely that an extension of time will be permitted.

  • Whether the estate had been distributed before the defendants were notified of the claim

The court will be concerned not to prejudice the existing beneficiaries of the estate should an award to the delayed claimant be made. Therefore the extent to which the estate has already been distributed will be a factor taken into account. That said, non-distribution of the estate will not be enough on its own to convince the court that they should provide the claimant with permission to bring the claim out of time, and vice-versa.

  • Whether dismissal of the claim would leave the applicant without recourse to other remedies

Where there is another remedy available against some other party, for example a negligent solicitor who failed to advise the claimant of the six month time limit, this may persuade the court to refuse permission to bring the claim. This will allow the existing beneficiaries to keep their full inheritance, whilst at the same time not leaving the claimant out of pocket as he/she can recover what they would be entitled to under the Inheritance Act from the negligent solicitor. This was the court's approach in the case of Adams v Schofield [2004] W.T.L.R. 1049.

  • Whether there is an identifiable trigger for bringing the claim

Whether the court will grant permission to bring the claim out of time also very much depends on the claimant being able to give a good explanation for the reason the claim was not brought in time. A common circumstance of most cases where applications have been successful is the existence of a special intervening factor.

For example, in Re C (Deceased) [1995] 2FLR 24, the court permitted a claim on behalf of the deceased's 8 year old child to be brought 18 months out of time because the delay was caused by the child's mother. In this case the court felt that to deny the application would cause the child to suffer at the result of another's fault, which would be a substantial injustice to the child.

Similarly, in the case of McNulty v McNulty [2002] W.T.L.R. 737 the Court granted permission despite a three and a half year delay in bringing the claim. In this case the distinguishing factor was that the true value of the estate was withheld from the claimant, and as soon as the claimant became aware of the true value proceedings were issued.

In the case of Berger v Berger, the estate was worth in excess of £7million, with much of the estate left on trust. Mrs Berger was the elderly widow of the deceased and came to the conclusion, nearly six and a half years after the issue of the Grant of Probate, that she was not being catered for properly under the will and trusts. She therefore applied for permission to bring a claim under the Inheritance Act over six years out of time.

Taking into account all of the above factors, the main thrust of the decision by the Court of Appeal in this case in refusing permission to bring the claim out of time was that there was no particular event that provoked the claim to be brought at the time that it was.

Conclusion

Berger v Berger provides useful and up to date guidance on what the court will take into account when deciding whether to grant a claimant with permission to bring a claim out of time.

While the court has discretion to grant permission to apply out of time, a potential applicant should not leave it to chance. Even if the parties agree an extension of time, the decision whether to permit the claim to be brought after the 6 months period is ultimately one for the court. The safest option is to start proceedings within the six month time limit and then to seek the court's permission to extend the life of the claim form and hold off from effecting service (if necessary), to avoid any risk of the claim being time barred.